Minors and immovable property

While the process for transferring ownership of immovable property remains largely the same in cases where one of the parties to the transfer is a minor, the minor’s contractual capacity must be carefully considered.

Property Blog Articles | Advice | Contractual Matters | Market News

In the case of a minor entering into an agreement for the sale of land and signing the transfer documents, there are a number of additional requirements that must be met.

Capacity to contract

First and foremost, a minor’s capacity to contract is governed by the common law as well as legislation. Minors are divided into 2 categories based on their age, namely minors under 7 years and minors between the age of 7 and 18 years.

Minors under 7 have no contractual capacity, meaning he or she cannot enter into a legally binding contract alone. Both parents or the legal guardian must sign a contract for the sale of land on his or her behalf. Minors between 7 and 18 have limited contractual capacity, and must be assisted by both parents or legal guardian when buying of selling land.

The parents or legal guardian may also act alone in this instance, subject to Section 80 of the Administration of Estates Act 66 of 1965 which stipulates that “no natural guardian shall alienate or mortgage any immovable property belonging to his/her minor child, unless so authorised thereto by the Court (value exceeding R 250 000.00) or by the Master (value not exceeding R 250 000.00)”.

Section 18 of the Children’s Act 38 of 2005 is also relevant in this instance by providing the following:

“A parent or other person who acts as guardian of a child must:

  • Administer and safeguard the child’s property and property interests;
  • Consent to the alienation or encumbrance of any immovable property of the child…”  

It can therefore be concluded that in the case of a minor being a party to the sale of land, the following will be necessary:

  • Assistance by the parents or legal guardians
  • Consent by the Master or the Court
  • Consent by the parent or legal guardian where the minors immoveable property is sold or bonded (where the minor is duly assisted by the guardian in the power of attorney, this additional consent is not required.)

Donations

The above will also be applicable in the case of a property being donated to a minor. However, due to donations tax (payable by the donor) being high relative to other taxes related to transfers, donations of land is seldom used as a form of transfer.   

Inheritance

When a minor inherits property, it is best practice to create a testamentary trust in favour of the minor, stating that the property will devolve upon the minor at a later age for example when he or she turns 25. The title deed of the property will then be endorsed to this effect.

In the absence of such a trust, the property will be held by the guardian’s fund at the Master of the High Court’s office until the minor turns 18 and the minor will only then be entitled to take transfer.

Follow Snymans on Facebook for more legal information, tips and news about property.

20314

Recommended for you

Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

The powers and duties of trustees in the transfer of immovable property

3660

There often comes a time when a beneficiary becomes entitled to take transfer of a property that is registered in the name of a trust. When this happens, there are a few options available to the trust in order to put this into effect.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Appointing multiple executors of a deceased estate

12780

The decision of who should be appointed as the executor of an estate can be made by the testator. While it is common for a single person to be appointed, it is also possible for a testator to appoint more than one person to share this role which can bring with it certain added complications.

Read More
Property Transfers | Bond Registrations | Snymans Attorneys
Contractual Matters

Buying a property with an existing tenant

13165

When purchasing a property with a tenant already in place, certain aspects should always be considered before the offer to purchase is signed.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

The long lease

18300

There has been a great deal of talk about 99-year leases which seems to have many, including Parliament, in a frenzy. What does a 99-lease entail? What happens at the end of the lease? Can your children inherit this piece of land? Below we answer some of the key concerns when it comes to a long lease.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Compliance Certificates and Home Inspections

18319

Before a property is sold and registered in the buyer’s name, it’s important that it is compliant with relevant regulations and that all parties are aware of the condition of the property and what maintenance or repairs might be needed. The buyer and seller each have responsibilities in this regard and it is important that both parties fulfil these obligations.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Minors and immovable property

While the process for transferring ownership of immovable property remains largely the same in cases where one of the parties to the transfer is a minor, the minor’s contractual capacity must be carefully considered.

Property Blog Articles | Advice | Contractual Matters | Market News

In the case of a minor entering into an agreement for the sale of land and signing the transfer documents, there are a number of additional requirements that must be met.

Capacity to contract

First and foremost, a minor’s capacity to contract is governed by the common law as well as legislation. Minors are divided into 2 categories based on their age, namely minors under 7 years and minors between the age of 7 and 18 years.

Minors under 7 have no contractual capacity, meaning he or she cannot enter into a legally binding contract alone. Both parents or the legal guardian must sign a contract for the sale of land on his or her behalf. Minors between 7 and 18 have limited contractual capacity, and must be assisted by both parents or legal guardian when buying of selling land.

The parents or legal guardian may also act alone in this instance, subject to Section 80 of the Administration of Estates Act 66 of 1965 which stipulates that “no natural guardian shall alienate or mortgage any immovable property belonging to his/her minor child, unless so authorised thereto by the Court (value exceeding R 250 000.00) or by the Master (value not exceeding R 250 000.00)”.

Section 18 of the Children’s Act 38 of 2005 is also relevant in this instance by providing the following:

“A parent or other person who acts as guardian of a child must:

  • Administer and safeguard the child’s property and property interests;
  • Consent to the alienation or encumbrance of any immovable property of the child…”  

It can therefore be concluded that in the case of a minor being a party to the sale of land, the following will be necessary:

  • Assistance by the parents or legal guardians
  • Consent by the Master or the Court
  • Consent by the parent or legal guardian where the minors immoveable property is sold or bonded (where the minor is duly assisted by the guardian in the power of attorney, this additional consent is not required.)

Donations

The above will also be applicable in the case of a property being donated to a minor. However, due to donations tax (payable by the donor) being high relative to other taxes related to transfers, donations of land is seldom used as a form of transfer.   

Inheritance

When a minor inherits property, it is best practice to create a testamentary trust in favour of the minor, stating that the property will devolve upon the minor at a later age for example when he or she turns 25. The title deed of the property will then be endorsed to this effect.

In the absence of such a trust, the property will be held by the guardian’s fund at the Master of the High Court’s office until the minor turns 18 and the minor will only then be entitled to take transfer.

Follow Snymans on Facebook for more legal information, tips and news about property.

20314